Trying to Negotiate Consensus On the Court

Supreme Court chief justice John Roberts faced the challenge of a lifetime in negotiations over the court’s Obamacare decision, according to a new biography. His struggle to balance conflicting goals can illuminate best practices for team talks.

By on / Conflict Resolution

“It’s my job to call balls and strikes, and not to pitch or bat,” Supreme Court chief justice John Roberts famously said at his 2005 confirmation hearing. The baseball metaphor appeared to be designed to reassure Democratic members of Congress and the public that Roberts would lead the court in a nonpartisan fashion, despite a career’s worth of conservative judicial opinions.

Indeed, as chief justice, Roberts faced two possible paths, writes journalist Joan Biskupic in The Chief: The Life and Turbulent Times of Chief Justice John Roberts (Basic Books, 2019): “to hew even more to his conservative roots or to work for common ground.” At different points, Roberts has gone down each path. He has sided firmly with the court’s conservative faction on cases involving race, religion, and campaign finance. Yet as the court’s leader, he has also been willing to prioritize the goal of negotiating decisions that appear nonpartisan over adhering closely to his personal values. A committed consensus builder, Roberts has tried to avoid narrow 5–4 rulings on hot-button issues that would portray the court as hopelessly divided along party lines.

In no other case have Roberts’ political views clashed more dramatically with his leadership goals than in National Federation of Independent Business v. Sebelius, the 2012 test of the Affordable Care Act (ACA), President Barack Obama’s signature health-care law, which was due to be rolled out in 2014. In their reporting of the tumultuous closed-door negotiations, Jan Crawford of CBS News and Biskupic described the mental gymnastics and arm-twisting Roberts engaged in after recognizing it was up to him to cast the swing vote upholding the law.

A party-line vote

Signed into law by Obama in March 2010, the ACA, also known as “Obamacare,” was designed to give more Americans, including those with preexisting health conditions, access to high-quality, affordable health care. The law expanded Medicaid and created a marketplace where citizens could buy insurance coverage. To try to ensure high enrollment, the law required most uninsured Americans to either obtain coverage or pay a penalty in their annual tax returns, a provision known as the “individual mandate.” Wildly reviled by conservatives, the ACA faced numerous legal challenges and repeal efforts in Congress.

As the chief guardian of the court’s reputation, Roberts was stuck between a rock and a hard place.

Over three days in late March 2012, the Supreme Court heard oral arguments on various aspects of the law, including the individual mandate and Medicaid expansion. The nine justices then convened with no staff present to debate the issues and cast their initial votes. Roberts came down squarely opposed to the individual mandate, arguing there was no legal precedent for Congress to order Americans to buy products (insurance) from private companies under the Constitution’s commerce clause. Somewhat predictably, conservative justices Antonin Scalia, Anthony Kennedy, Clarence Thomas, and Samuel Alito agreed, while liberal justices Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor, and Elena Kagan voted to uphold the individual mandate. Despite being on the winning side, Roberts was “bothered” by the partisan division, according to Biskupic.

The justices then voted on the ACA’s Medicaid expansion provision, which would revoke all federal Medicaid funding from states that did not expand their Medicaid programs. This time, Roberts voted with the liberals and against his fellow conservatives to uphold the expansion, giving the liberal wing a tentative victory.

A change of heart

After the court’s straw poll, the only open question appeared to be “whether any of Obamacare would survive,” writes Biskupic. Roberts’ four conservative colleagues believed the various components of the ACA were “interlocked” and should all be defeated, according to Biskupic. But Roberts had decided that he didn’t want the court to be responsible for a wholesale invalidation of a law that the other two branches of the federal government had passed to address a pressing social problem. He tried to persuade Kennedy, the court’s swing vote, to preserve the ACA without the individual mandate, but Kennedy refused.

There was no judicial precedent for the argument that the individual mandate violated the Constitution. But if the court crafted a new theory to strike down the mandate, it would be accused of overreaching. As the chief guardian of the court’s reputation, Roberts was stuck between a rock and a hard place.

He began to look for a legal justification to abandon his support of the mandate. Could the mandate be upheld as a tax, as the Obama White House had tried to position it? The lower courts had rejected that characterization, but Roberts began to explore it. Kennedy, who had long voted to protect individual citizens from unchecked government power, took a dim view of that argument.

As he considered joining liberals in their support of the mandate, Roberts, who had chosen to write the majority opinion, also began to think about joining the conservatives in opposing the less controversial Medicaid expansion provision—an odd development, given that it had been upheld by the lower courts. In a draft opinion, Roberts wrote that Congress had “held a gun to the head” of the states by conditioning all Medicaid funding on the expansion.

Breyer and Kagan saw an opening. If they could convince Roberts to accept the individual mandate, they decided they would be willing to sacrifice Medicaid expansion. They met with the chief justice to search for common ground.

Breaking away

The conservatives on the court were alarmed to learn that Roberts was looking for a way to support the mandate, Biskupic writes in The Chief. Kennedy and the other conservatives mounted a “desperate” monthlong campaign to bring Roberts back around to their opinion, according to Crawford. They did not succeed.

On June 28, Roberts sided with the court’s four more liberal members in upholding the ACA. In his opinion, he wrote that Congress could not justify supporting the individual mandate under the Constitution’s commerce clause but that the mandate “may reasonably be characterized as a tax.” The court’s majority also restricted the Medicaid expansion on the grounds that it violates the Constitution by threatening existing Medicaid funding.

Kennedy joined the court’s three most conservative members in issuing an unusual unsigned dissent that said the court should have struck down the ACA in full and that called the tax argument “a vast judicial overreaching.”

An ongoing balancing act

In casting the deciding vote to uphold Obama’s signature achievement, Roberts came to be viewed as more of a moderate than he originally had been perceived, while attracting the distrust of conservatives. Though gratified by the ACA decision, even many Democrats viewed the tax justification for the individual mandate to be convoluted.

Roberts has refused to shed light on his thinking throughout the decision- making and negotiation process. In an interview with National Public Radio,  Biskupic theorized that he came to believe that the ACA needed to be upheld to protect public perceptions of the legitimacy of the Supreme Court. In May 2012, as Roberts was working through his decision, countless news articles warned that the court could be damaged by accusations of partisanship if the mandate was struck down. And Roberts himself might have been accused of picking a fight with the sitting president during an election year.

Though still siding with the court’s conservatives on key decisions, Roberts continues to try to mold public perceptions of a nonpartisan court, a job perhaps made more difficult by the 2018 replacement of swing voter Kennedy with conservative Brett Kavanaugh. In November 2018, after President Donald Trump denounced a federal judge who had struck down his migrant asylum policy as an “Obama judge,” Roberts delivered a highly unusual public rebuke: “We do not have Obama judges or Trump judges, Bush judges or Clinton judges. What we have is an extraordinary group of dedicated judges doing their level best to do equal right to those appearing before them.”

Leading complex team negotiations

As Supreme Court chief justice, Roberts will inevitably continue to face ongoing conflicts between his dual roles: the primary steward of the court’s reputation and an individual justice interpreting the law. For others confronting role conflicts in team and group negotiations, these guidelines may help:

  • Negotiate with yourself in advance. Throughout the court’s ACA negotiations, Roberts seemed torn between his twin roles and, consequently, unprepared for the task of developing a compelling legal rationale for upholding Obamacare. Before negotiating, give yourself ample time to think through internal struggles and develop clear goals and strategies. By doing so, you will minimize the risk of confusing or antagonizing your counterparts—and enhance your negotiating power.
  • Build consensus. It’s rarely easy to manage a team that has divided into factions, but principles of consensus building, such as engaging in group problem solving, can help. Decision- making teams can get closer to consensus by aiming to get as many members as possible to buy into a shared decision. Strive to unite the group behind shared overarching values to get members to see beyond tribal concerns.
  • Explain your rationale. At times, leaders need to make unilateral decisions that are unpopular with certain team members or factions. In such scenarios, meet in private to share the reasoning behind your decision. Even if team members don’t agree with it, they should appreciate the effort you made to win them over.

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